As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.

In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.

The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location's poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.

The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.

Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA.

The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.

It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.

It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.

Besides these issues of impact, the question also arises over whether Texas can, in fact, legally discriminate between physicians based solely on their citizenship status. At the time this amendment to the Medical Practice Act was passed, the federal courts has already seemed to indicate the answer is yes. The Fifth Circuit Court of Appeals, the federal appellate court which sets precedent for federal courts in Texas, held in 2005 that states could discriminate against H-1B visa holders as much as they pleased provided there was some "rational basis" for the discrimination. SeeLeClerc v. Webb, 419 F.3d 405, 422 (5th Cir. 2005). Rational basis review is a very weak standard and only requires that the law in question is rationally related to a legitimate government interest. Very few statutes are ever struck down for lacking a rational basis. Thus according to the Fifth Circuit, there is no violation of the Constitution's Equal Protection clause by treating H-1B holders differently and separately from citizens.

However, in January of 2012 the Second Circuit Court of Appeals in New York held the precise opposite. That Court held that states could only discriminate against H-1Bs if there was a compelling reason. Dandamudi v. Tisch, 686 F.3d 66, 79 (2nd Cir. 2012). This standard, known as strict scrutiny, is very hard for a state to meet. All but two statutes have been ruled unconstitutional when evaluated under the strict scrutiny standard. Accordingly, Dandamudi, held that states cannot, outside of a very compelling reason, discriminate against foreigners based on their citizenship status, just as states could not discriminate against people based on race.

Though the Fifth Circuit's LeClerc decision is still valid law in Texas federal courts, the challenge posed by Dandamudi is, nevertheless, interesting. Importantly, neither of these cases is binding on the Texas state courts which will be able to decide for themselves which standard, rational basis, or strict scrutiny, they would apply were this law to be challenged.

Regardless, a foreign physician on a work visa in Texas must now practice in a restricted set of geographic areas, whereas an citizen physician faces no such impediment. This difference in outcomes is not based on any quality of care concerns that a foreign doctor may raise, but merely on the foreigner's disadvantaged immigration status. It is unclear as to what sort of impact the new law will have on Texas health care. My best guess is that far fewer foreign physicians will be staying in Texas even if this is the state where they completed their residency. In my opinion, this is not the best strategy when the state is already facing a severe physician shortage, particularly in primary care.

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